So it’s news literally heard across the world that Pen City Current is seeking visual evidence of an alleged incident from a December assembly at the Fort Madison Middle School involving Principal Todd Dirth. We’ve been seeking recorded evidence of the video for seven months, working with the district and through what we believed to be proper channels.
That’s all we’re going to say about that issue of the assembly. Other than to write here that if anyone has video evidence of the assembly and would like to anonymously submit a copy, they can put it on a jump drive and mail it without return address to P.O. Box 366, Fort Madison, Iowa 52627.
The rest of this editorial will focus on what can be best described as an arbitration between Pen City Current and the Fort Madison School District for the release of the video through the Iowa Public Information Board.
The assembly occurred on Dec. 13 and Pen City Current received several anonymous messages that evening about the assembly. We asked several of those reaching out to us to go on record, but none would whether out of fear of retribution or lack of interest in talking about the issue publicly – a phenomenon we’re accustomed to in the news reporting business.
We had a story written using anonymous sources, a move that we’ve never engaged in to this point. Despite several nationally renowned journalists who believe that the use of anonymous sources provides another avenue for journalists to make public bodies discuss issues they choose not to discuss, we chose to hold the story.
Instead, we reached out to the district for a copy of the video. On Dec. 13 we requested the document under federal open records laws governed by the Freedom of Information Act. According to the FOIA’s site at www.foia.gov, “… since 1967, the Freedom of Information Act (FOIA) has provided the public the right to request access to records from any federal agency. Federal agencies are required to disclose any information requested under the FOIA unless it falls under one of nine exemptions which protect interests such as personal privacy, national security, and law enforcement.”
On Feb. 13,, 60 days after our original request for access, the district denied access under Iowa Code Chapter 22, which protects “personal” information in an employees personnel file. For the record, the Current did not request any personal information. On March 2, the Current filed an appeal with the district following FOIA appeal protocol expressing that we did not request “personal” information, but a copy of a video in the district’s possession. On May 11th, 69 days later, the district emailed a second denial. On June 18th the Current filed a formal request the Iowa Public Information Board, a board charged with arbitrating these vary issues in hopes of securing an informal resolution to the dispute.
One of the questions looming is that the FOIA governs federal agencies. Is a public school district a “federal agency”? That’s up for dispute, but do they take any federal funds….for any incentives or program at any levels, possibly from the U.S. Dept. of Education? If they do, would that lump them into having to abide by federal open records law? It’s our contention they do. However, the IPIB draws a distinction.
It’s a stretch…and that point was never argued between the district and Pen City Current. However IPIB director Margaret Johnson said FOIA guidelines did not apply to our request. Let’s put that aside for the moment.
A synopsis of Iowa’s Open Records Law is provided at www.nfoic.org and reads as follows:
“The Iowa Open Records Law is a series of laws designed to guarantee that the public has access to public records of government bodies at all levels. The law includes all records of government agencies except where the documents have been deemed confidential. Exemptions include: Personal information on accepted students, current students, and past students; Medical records; Trade Secrets; Records of attorneys who represent the state; Reports that result in unfair competition; Appraisal information for public land purchases; Criminal files; Military confidential records; Personal information in records of employees and elected officials of public agencies (emphasis added); Library records; Information on the donors of charitable contributions; Corrections department information that would jeopardize security; Communications made to the government but not required by statute; Examinations; Archaeological and historical ecologically sensitive material locations and information; Marketing and advertising budgets and strategies for non-profits; Information maintained by mediators employed to solve the disputes with government agencies. Anyone can request public records and the law does not require a statement of purpose for records requests. There are no restrictions for use of the records in the law and you must allow 10-20 days for a record request response to be completed.
We list the whole thing here, but only a couple issues pertain to this matter. Note the 10-20 days response time in the law and remember that it took the district 60 days to respond and then an additional 69 days to respond to the Current’s appeal of the denial. It should also be noted here that the district and it’s attorney did not contest the appeal on the grounds that there was no mechanism in place for an appeal. They addressed the appeal like it was properly submitted.
On July 19, the IPIB dismissed our complaint against the district on the grounds that our complaint was filed more than 60 days after the original denial.
In doing the math, the district can take 129 days to respond to two requests for access to the video, but the IPIB can dismiss it because our complaint…wait for it… was 60 days old. We contend the IPIB’s jurisdiction began when we were denied on appeal, because that’s the date we had exhausted all measures known to us in working with the district to gain access to the record.
Iowa Code Section 22.1(a)3 reads as follows: It’s the policy of this chapter that free and open examination of public records is generally in the public interest even though such examination may cause inconvenience or embarrassment to public officials or others.
The district is keeping the video privileged because, as Ellingson indicated in her arguments, a school district employee was disciplined as a result of an investigation into the assembly. They have yet to identify who that individual was. The district contends that because the record was used as part of the disciplinary process it now becomes part of the employee’s personnel file, even though it contains no “personal” information.
Chapter 22 is very specific as to documents including “personal” information as part of the employee’s personnel records. Chapter 22 does not prescribe protection for any records involving discipline. Ellingson used rulings in court cases at the state level to indicate a precedent for denying access and we contested that as the case law had no equal relevance to requesting a video of an assembly where no expectation of privacy exists. However, a strict interpretation of the Code does not guarantee the protection of those records. In fact the Code goes on to say that in the event of a termination, resignation in lieu of termination or change of employee status, the details of that discipline policy will be considered public record.
The Current decided to appeal the Feb. 13 decision rather than file a complaint. Johnson said in her ruling that Chapter 22 of the Iowa Code doesn’t have an appeal remedy. She’s correct in that it doesn’t. It does provide for a district review, but that requires the general public to, in essence, file suit and petition the district. At what cost? Why should the public be saddled with court costs in an effort to have a governmental body, operating with no expectation of privacy, turn over a record of a school assembly? The IPIB was specifically set up to arbitrate these very complaints, yet it refused to give equal weight to our contention that we filed an appeal and were working that appeal process. Johnson quickly, following an argument filed by Ellingson just days prior to an anticipated ruling, sided with the district on the time issue.
Some could deduce that the district was involved in delaying the process with addressing the issue on its merits, knowing that a clock was ticking behind the scenes, while we also engaged in debating the record on its merits. If that was the district’s intention, it would certainly seem they didn’t have faith in their legal arguments, but were playing a game to run out the clock. But ignorance is not bliss, and we should have been better prepared.
When reporters have called, we’ve kept our comments on the issue to the release of the record and not the specific incident because we just haven’t seen it and think writing about those allegations is presumptuous at this point. However, as we’ve said in recent articles published elsewhere, how can there be any expectation of privacy, whatsoever of a school administrator in front of an entire student body, faculty, staff, and who knows who else was there? We believe that expectation is disingenuous to the people of the district and we ask that the video be released.
Either way, the IPIB’s decision to not recognize any appeal process on our part is a disservice to public records processes at all levels, the tax payers of the Fort Madison School District, the Freedom of Information Act, and in general to the spirit of state and federal laws that were written to preserve the free and open examination of public records.